Upon the facts found by the referee it is quite clear that at the time of the conveyance by Freeman to the plaintiff of the premises in *662question, the title to the said premises was in the said Henry A. D. Freeman. He held the same in trust to convey them to the defendant Margaret Darrin upon request. The deed which he executed and delivered upon her request to the plaintiff was in fulfillment of this trust. But the plaintiff, upon the execution and delivery of such deed, acquired new rights. He took the legal title as upon a purchase for $1500 in cash, paid in hand, and the amount of the bond and mortgage given by Freeman to Wagner, on the purchase of said premises from him, for the sum of $3200, and' subject also to another mortgage of $800, then outstanding, making the premises cost the plaintiff, in this view, the sum of $5500. This mortgage of $3200 was doubtless merged in the plaintiff’s legal title, and such was, I think, clearly the intention of the parties, or there was no intention to keep it alive not merged. (See Bascom v. Smith, 34 N. Y. 320.) For the contract which the plaintiff gave the defendant Margaret Darrin, for a resale of the premises, was for the price or sum of $5650 in one entire sum, which must have included said mortgage .as part of the purchase money. The form of the transaction between these parties coincides with what the plaintiff and his attorney, Wood, testify was the real transaction—a purchase of the premises at the price aforesaid, of $5500, with an agreement to resell the same at a future period at an advanced price of $5650. This would not be usurious or illegal. (Glover v. Payn, 19 Wend. 518.) For the money actually advanced at the time, the defendant Margaret Darrin incurred no debt or liability. Ho money was loaned or paid to her. The $1500 was in fact paid by check to Freeman, who held the title. If Mrs. Darrin had then held the legal title, and had conveyed the premises as a mere security for the $1500, with an agreement on the part of the plaintiff to reconvey on the payment of $1650, the deed would doubtless have been a mere mortgage, and would clearly have been usurious, and the referee might *663have so adjudged, and set aside the mortgage as an invalid incumbrance upon'the land. This would have left the legal title in her, and she would have needed no conveyance of such title. But that is not this case. Mrs. Darrin had not the legal title. She could only get such legal title by a conveyance from the plaintiff The referee held that the plaintiff was a mortgagee, and therefore could not maintain ejectment, and in this I think he erred. The plaintiff was something more than a mere mortgagee. He was a trustee, at least, of the title, substituted in the place of Freeman, with the rights of a purchaser to the extent of his mortgage of $3200, and the $1500 advanced by him. At most, the defendant had a right of redemption, or a right, under the contract, to a conveyance, on complying with the terms of the agreement for repurchase and resale. The agreement to pay and to receive $150 over and above the actual amount of the mortgage and the money advanced, did not necessarily make the transaction usurious. In Brown v. Lynch, (1 Paige, 158,) Brown advanced $1500, and took the title to the plaintiff’s land, and was to have his principal and interest, and $60 for his trouble. It was not considered that this was usurious or objectionable. In Ryan v. Box, (34 N. Y. 307,) Dox took the title and advanced his own money, for which he was to receive interest, and also a compensation for his trouble. This was not disallowed as usurious, or regarded as objectionable. The agreement for the resale in this case gave the defendants from June 24, 1867, till the 24th of October following, to pay $1650, when they were to give him a bond and mortgage for the balance of the purchase money, $3200, payable on the 20th of August, 1868, and the plaintiff was at the same time to execute and deliver the deed of said premises, subject to the $800 mortgage above mentioned. Considering, as I think we must, that the plaintiff had the legal title to the premises, it was error on. the part of the referee to dismiss the complaint. If he had *664found that, so far as related to the $1500 advanced by the plaintiff, the plaintiff’s claim was that of a mortgagee, and that such claim was void for usury, it would not have followed that the proper judgment was to dismiss the complaint. As he did not so find, it is not the duty of this court, as a court of equity, if it has the right to do so on appeal, to draw such conclusions, and enforce a forfeiture of such sum upon that ground. It seems to me that it is rather our duty, upon the facts found and undisputed, to render such judgment as the referee should have rendered, upon the whole case. The defendants set up the facts tending to establish an equitable defense, and also asked, upon the same facts, for affirmative equitable relief. In the fourth answer, or counter-claim, the defendants ask that if said deed from Freeman to the plaintiff shall not be deemed and declared null and void, the same may be adjudged and declared to be only a lien upon said premises, by way of a mortgage, and so held by the plaintiff as security for the moneys loaned, as in said agreement mentioned, and that the defendant Margaret M. Darrin have the right to redeem the same, or to the enforcement of the said agreement to reconvey, upon the payment of the moneys in said contract mentioned, and that the said dedefendant is the equitable owner of the premises, subject to such payment, and for affirmative relief. Time was not of the essence of the contract, in the agreement between the parties, and I think the defendant may be relieved from the default in not making payment according to the terms of said contract. It is quite clear, I think, that this court, under section 330 of the Code, has the right to reverse or affirm, or modify this judgment, as it may deem proper, and render such judgment as the referee ought to have rendered upon the clear, undisputed facts of the case. (Howard v. Freeman, 3 Abb. N. S. 292. O’Shea v. Kirker, 8 id. 69. S. C., 4 Bosw. 120. Hannay v. Pell, 4 E. D. Smith, . 432.) Upon the finding of the referee, that the plaintiff’s *665title was in the nature of a mortgage or conditional deed for money loaned, I think he should have allowed the defendants to redeem such mortgage according to their prayer for affirmative relief, and rendered judgment accordingly. The judgment should therefore, I think, be reversed, so far as it dismisses the complaint and gives costs to the defendants, and judgment be given that the defendant Margaret Darrin have leave to redeem said premises, or have a conveyance of the same on her compliance with the terms of the written agreement for the resale of said premises set out in the pleadings, which the plaintiff should specifically perform if the defendant shall, within four months from the time of the service of a copy of the decree or judgment herein directed, perform and fulfill the same on her part, by the payment of the principal sum and interest due the plaintiff by the terms of said agreement, with the costs of this action; and in default of such payment, that the plaintiff recover said premises, and be let into possession thereof, and recover the costs of this action.
[Second Department, General Term, at Poughkeepsie, June 14, 1870.•Judgment so ordered.
J. F. Barnard, P J., and Daniels and E. D. Smith, Justices.]